Doctrine of Part Performance under Section 53A TPA – No Protection Without Possession in Part Performance; RSA Dismissed

Headnote:

The Punjab and Haryana High Court, in RSA-2287-2001 (O&M), dismissed the second appeal filed by Amar Nath against the concurrent findings of the lower courts decreeing possession in favor of Smt. Naino Devi and others. The appellant claimed protection under Section 53A of the Transfer of Property Act, 1882, based on an agreement to sell dated 07.05.1963 and a receipt dated 15.09.1963. The Court held that possession was not delivered in part performance of the agreement but taken several years later; hence, the essential conditions of Section 53A were not met. Further, as the defendants’ suit for specific performance had already been dismissed, they could not invoke equitable protection under Section 53A. Finding no perversity or substantial question of law, the High Court upheld the concurrent findings and dismissed the appeal.

Background:

• Appellants: Amar Nath (defendant before trial court)

• Respondents: Smt. Naino Devi and others (plaintiffs before trial court)

• Property: Immovable property originally purchased by Gurmukh Singh (plaintiffs’ predecessor) in open auction from the Department of Rehabilitation.

• Plaintiffs’ Claim: Possession and mesne profits on the ground that defendants were illegal occupants.

• Defence: Agreement to sell dated 07.05.1963; payment of full consideration; possession delivered; protection under Section 53A TPA and plea of adverse possession.

• Trial Court Decree: 26.08.1995 – Decree for possession granted to plaintiffs.

• First Appellate Court: 02.05.2001 – Appeal dismissed, findings affirmed.

• Second Appeal: Filed by Amar Nath challenging concurrent judgments.

Appellant’s Contentions:

1. Possession was delivered pursuant to the agreement to sell dated 07.05.1963.
2. Protection under Section 53A TPA is available even for unregistered agreements.
3. Relied on Ghanshyam v. Yogendra Rathi, (2023) 7 SCC 361, arguing that possession under a valid agreement cannot be disturbed by the transferor.

Respondents’ Contentions:

1. The agreement (Ex.DZ) did not record delivery of possession pursuant to the contract.
2. Possession was taken 6–7 years later, not contemporaneously, hence no “part performance.”
3. The defendants’ suit for specific performance was dismissed; hence, Section 53A protection is not available.
4. Relied on Mohan Lal v. Mirza Abdul Gaffar, AIR 1996 SC 910, and Nathulal v. Phoolchand, AIR 1970 SC 546.

Court’s Findings:

1. The agreement to sell (07.05.1963) stipulated delivery of possession only after removal of debris and within one month, but there is no evidence that it was actually delivered then.
2. The receipt (15.09.1963) merely allowed the vendees to take possession later; thus, possession remained with Gurmukh Singh.
3. Defendants admitted that the property was vacated and possession taken nearly 6–7 years later, proving that possession was not in part performance.
4. Essential conditions under Section 53A—such as possession pursuant to the contract and readiness/willingness to perform—were not satisfied.
5. Once the suit for specific performance was dismissed, the right to claim protection under Section 53A ceased.
6. The doctrine of part performance operates only as a shield, not as a sword, and cannot be invoked after extinguishment of contractual rights.
7. Reliance on Ghanshyam v. Yogendra Rathi misplaced, as that case applies only when possession is lawfully taken under the contract.
8. Concurrent findings of fact by lower courts based on evidence cannot be disturbed absent perversity or substantial question of law.

Decision:

• Appeal dismissed.

• Concurrent judgments of Trial Court and First Appellate Court upheld.

• No substantial question of law arose.

• No order as to costs.

Legal Provisions and Precedents Discussed:

• Section 53A, Transfer of Property Act, 1882 – Doctrine of part performance.

• Section 16(c), Specific Relief Act, 1963 – Readiness and willingness to perform.

• Mohan Lal (Deceased) through LRs v. Mirza Abdul Gaffar and Another, AIR 1996 SC 910.

• Nathulal v. Phoolchand, AIR 1970 SC 546.

• Ghanshyam v. Yogendra Rathi, (2023) 7 SCC 361.

Final Outcome:

Regular Second Appeal (RSA-2287-2001) dismissed.

Decree for possession in favor of plaintiffs (Smt. Naino Devi & Ors.) affirmed.

No costs awarded.

• Case Title: Amar Nath v. Smt. Naino Devi and Others

• Case Number: RSA-2287-2001 (O&M)

• Court: High Court of Punjab and Haryana at Chandigarh

• Coram: Hon’ble Mr. Justice Deepak Gupta